United States v. Northwestern Pac. R. Co.

• Decision Date: 31 July 1916
• Docket Number: 15952.,15897
• Citation: 235 F. 965
• Parties: UNITED STATES v. NORTHWESTERN PAC. R. CO.
• Court: U.S. District Court — Northern District of California

235 F. 965

UNITED STATES v. NORTHWESTERN PAC. R. CO.

Nos. 15897, 15952.

United States District Court, N.D. California.

July 31, 1916

E. F Jared, Asst. U.S. Atty., of San Francisco, Cal., and Roscoe F. Walter, Sp. Asst. U.S. Atty., of Washington, D.C., for the United States in No. 15897.

E. F Jared, Asst. U.S. Atty., of San Francisco, Cal., and Monroe C. List, Sp. Asst. U.S. Atty., of Washington, D.C., for the United States in No. 15952.

Stanley Moore and C. J. Goodell, both of San Francisco, Cal., for defendant.

VAN FLEET, District Judge.

These cases involve alleged infractions by the defendant of the federal Safety Appliance Act of March 2, 1893 (27 Stat.L. 531 (Comp. St. Secs. 8605-8612)), as amended Act April 1, 1896 (29 Stat.L. 85 (Comp. St. 1913, Sec. 8610)), and Act March 2 1903 (32 Stat.L. 943 (Comp. St. 1913, Secs. 8613-8615)). While not tried together, they have been submitted on the same argument and briefs, and as the principal question in each is common to both, they may be disposed of in one opinion.

There is no controversy as to the defendant being a corporation engaged in interstate commerce and subject to the requirements of the act, nor as to the fact of the existence of the several defects in the equipment as alleged and counted upon in both actions, the only controversy arising over the questions: (1) Whether it was being employed for a purpose such as to bring it within the act; and (2) in a manner to render defendant responsible for such use.

1. The first three counts in case No. 15897 cover the use on defendant's road of three of its own cars under these circumstances: The Bayside Lumber Company, a patron of defendant, with its mills near Eureka, carried on logging operations about 3 miles from defendant's line, with which they connected by their own service track at a point called Mannons Creek, about 25 miles from Eureka; the cars in question were part of a number set aside by defendant to the lumber company for its use in hauling logs from the logging camp; they were not regular logging cars, but flat cars of standard gauge and make, equipped, while so used, with transverse 'cradles,' or 'bumpers,' for holding logs. The defendant would deliver these cars empty to the lumber company at Mannons Creek, where the latter would receive, load, and return them to the junction, and the defendant would then take and deliver them over its line at the mills near Eureka. It was while in pursuance of this arrangement between the lumber company and the defendant the cars in question were being hauled over defendant's line in one of its own trains, and in control of its employes, that the defects counted upon were shown to exist.

The only thing in the nature of a defense advanced by defendant to shield itself from liability for use of these three cars in the defective condition shown is the claim that, as they were being used exclusively at the time for the transportation of logs, they were exempted from the operation of the Safety Appliance Act by the proviso to section 6 (as amended in 1896, 29 Stat.L. 85), which reads:

'Provided, that nothing in this act contained shall apply to trains composed of four-wheel cars or to trains composed of eight-wheel standard logging cars where the height of such car from top of rail to center of coupling does not exceed 25 inches, or to locomotives used in hauling such trains when such cars or locomotives are exclusively used for the transportation of logs.'

But the statement of the claim, in view of the language of the proviso, discloses its utter futility. The fact that the cars were at the time being used for the transportation of logs is not enough. The statute excludes only 'standard logging cars where the height of such car from top of rail to center of coupling does not exceed 25 inches. ' These cars, as noted, were not of that character, but were standard flat cars having, as the evidence shows, a height in the respect mentioned of 34 inches. The act makes the one condition as essential to the exemption as the other, and it is not for the court to give it a construction which would defeat the legislative intent so plainly and explicitly expressed. Assuming, therefore, that the character of use here being made of these cars was such as would bring them within the category of cars 'exclusively used for the transportation of logs,' within the contemplation of the act (see Spokane, etc., R.R. Co. v. United States, 241 U.S. 344, 36 Sup.Ct. 668, 60 L.Ed. 1037, United States Supreme Court, June 5, 1916), a thing it is not necessary to decide, the lack, in the essential feature pointed out, must necessarily exclude them from the protection of the proviso.

2. The remaining six counts in No. 15897 and the first five counts in No. 15952 (No. 6 not being involved) fall within one and the same category under the defense made. They all cover the use of defective cars, excepting only No. 9 in 15897, which alleges the movement of a defectively equipped train. For the reason above stated it is not essential to specify the character of the various defects alleged, there being no controversy as to their existence; the defense involving solely a question of defendant's responsibility therefor by reason of the circumstances. Excepting as to the particular equipment specified in each, all these counts are precisely similar in their purport, charging that the defendant on the particular date 'permitted to be hauled,' as alleged in some, or 'permitted to be used or hauled,' as charged in others, 'over a part of a through highway of interstate commerce, ' etc., the particular unit of equipment counted upon. The movement of all the equipment covered by these counts at the dates alleged was had under and in pursuance of an operating or traffic agreement between the defendant and the Pacific Lumber Company, whereby the latter was permitted to use the main line of defendant's road between the stations of South Bay and Scotia, a distance of some 22 miles, for the passing back and forth to and from its mills of the trains of the lumber company in the transportation of its...